273 So. 3d 783
Miss. Ct. App.2018Background
- James Cassidy divorced Farra Sheridan (May 2016); PSA awarded physical custody of four minor children to Farra and required James to pay child support and rehabilitative alimony.
- Farra sought chancery-court permission to relocate the children to Benton, Arkansas; James moved to modify custody to himself (July 2016 hearing).
- Evidence at the modification hearing included Farra's post-divorce relationship with a married man (later husband), violations of a PSA clause forbidding overnight adult visitors while children were present, alcohol use while on prescription medications, and multiple unexcused school absences/tardies tied to Arkansas trips.
- Witness testimony described instances where Farra appeared intoxicated in public and children were left unsupervised; James testified to diminished relationship and parental communication issues.
- The chancellor concluded a material change in circumstances adversely affecting the children and, applying the Albright factors, awarded custody to James and ordered child support from Farra.
- Farra appealed, arguing (1) no material change in circumstances; (2) misapplication of Albright factors; (3) refusal to permit the 12-year-old son to state a preference; and (4) refusal to allow two children to testify.
Issues
| Issue | Plaintiff's Argument (Farra) | Defendant's Argument (James) | Held |
|---|---|---|---|
| Whether there was a material change in circumstances justifying custody modification | No; insufficient evidence that circumstances materially changed or adversely affected children | Yes; multiple post-divorce events (PSA violations, alcohol on meds, school absences, coaching) showed material change harming children | Court: Material change found; chancellor not manifestly wrong |
| Whether chancellor misapplied Albright factors (esp. physical/mental health, moral fitness, child preference) | Albright misapplied; medication use should not be penalized; adultery overemphasized; child preference ignored | Chancery properly weighed factors: alcohol while on meds and PSA violations show poor judgment; moral fitness and most factors favored James | Court: Albright analysis supported by substantial evidence; no abuse of discretion |
| Whether denying the 12-year-old chance to testify about custodial preference was reversible error | Denial prevented child from stating preference and from being used as evidence of material change; Jethrow/Anderson require opportunity to testify | Chancellor refused due to belief child was coached and allowed proffer of child's preference; court may decline to follow child's preference but must state reasons if ignored | Court: Chancellor permissibly excluded direct testimony given coaching concerns and proffer preserved preference; refusal not reversible |
| Whether refusing to let two children testify (Jethrow procedures) was error | Chancellor should have held Jethrow competency/best-interest hearing before excluding children | Chancellor believed testimony would pit children against parents and was likely coached; neither party requested a Jethrow hearing | Court: No abuse of discretion in excluding testimony without Jethrow hearing under these circumstances |
Key Cases Cited
- Albright v. Albright, 437 So.2d 1003 (Miss. 1983) (lists custody factors for best-interest analysis)
- Riley v. Doerner, 677 So.2d 740 (Miss. 1996) (court may remove a child from an unhealthy custodial environment despite the child’s resilience)
- Mabus v. Mabus, 847 So.2d 815 (Miss. 2003) (elements required to modify custody: material change, adverse effect, best interests)
- Floyd v. Floyd, 949 So.2d 26 (Miss. 2007) (chancellor not bound by child’s preference; must state reasons when foregoing it)
- Jethrow v. Jethrow, 571 So.2d 270 (Miss. 1990) (procedure for admitting testimony of child of tender years: competency and best-interest inquiries)
- Anderson v. Anderson, 961 So.2d 55 (Miss. Ct. App. 2007) (chancellor abused discretion by preventing children from testifying as to custody preference)